NEW YORK -- Citing the release of a gay man yesterday whose sexual orientation was used as a basis for sentencing him to die, the American Civil Liberties Union today called on the Governor of Texas to impose an immediate moratorium on the death penalty statewide.

Calvin Burdine's 15-year-old conviction was overturned in September because his public defender slept through substantial portions of the trial. The ACLU's brief in the appeal also argued that the trial was tainted with homophobia, from the prosecutor, from Burdine's court-appointed lawyer and from the jury. The trial judge failed to intervene during repeated homophobic comments in the courtroom.

When Burdine's conviction was overturned, the state was given 120 days to re-try or free him. The state missed the deadline, yet still argued that Burdine should remain on death row. Yesterday, a federal judge ordered the state to release Burdine by Monday. During Burdine's trial, the prosecution argued that life imprisonment is a less severe punishment for homosexuals than for heterosexuals. "Sending a homosexual to the penitentiary certainly isn't a very bad punishment for a homosexual, and that's what he's asking you to do," the prosecutor said in the final moments of his closing statement.

"The justice system failed not only Calvin Burdine, but also the people of Texas by permitting bigotry and shoddy representation to open the door to this result," said Matt Coles, Director of the ACLU's Lesbian and Gay Rights Project.

"This is not the only case where gay men or lesbians have been sentenced to death because of their sexual orientation," Coles said. "Just as the death penalty is applied selectively to people of color and low-income people, it is also used against lesbian and gay people. It's unconscionable - and it's also unconstitutional."

In a letter sent to Texas Gov. George W. Bush today, the ACLU said an immediate moratorium on the death penalty is the "moral and Constitutional" response to continued injustice in Texas' capital punishment system. "In a state and a larger society where prejudice plays a major role in criminal justice in general and the death penalty in particular, lesbians and gay men -- like every despised minority -- have good reason to fear the death penalty. And - regardless of race, sexual orientation or class - all Texans and all Americans have reason for deep concern," the ACLU wrote.

This morning, Bush said he opposes Burdine's release, and claimed that the Texas Constitution precludes him from issuing a moratorium on capital punishment. The ACLU reiterated that its position is not necessarily that Burdine should be released from prison for good - but that he deserves a fair trial, free of homophobia and with adequate representation. Further, the ACLU noted that Illinois Gov. George Ryan's recent Executive Order halting executions there remains an issue of state constitutional debate - but that Ryan's order has suspended executions in the meantime.

March 2, 2000Governor George W. BushTexas State Capitol1100 San JacintoAustin, TX 78701

Dear Governor Bush:

Yesterday afternoon, the U.S. District Court in Houston ordered the release of Calvin Burdine, who has spent more than 15 years on death row in Texas. The release was ordered after the state missed a deadline to begin a retrial of Mr. Burdine if it wished to keep him in custody.

Mr. Burdine's conviction was overturned because his public defender repeatedly fell asleep during substantial portions of the trial - a trial that was tainted with blatant, shocking homophobia directed at Mr. Burdine from the prosecution, Mr. Burdine's court-appointed lawyer and the jury. The trial judge failed to intervene during repeated homophobic slurs in the courtroom.

Today, we ask you to declare a moratorium on the death penalty in Texas while more information is gathered on whether it is being imposed fairly, equally and justly. While we believe an outright abolition of the death penalty is the only moral and Constitutional resolution to this injustice, an immediate suspension of all executions - as Gov. George Ryan recently ordered in Illinois - will provide an opportunity for research and information-gathering.

Your statement today, that such a moratorium is not within your purview as governor, is inadequate. You are the chief executive of the state. You have a moral and Constitutional obligation to lead. On behalf of Calvin Burdine and all of the other people who have been sentenced to death in Texas, we ask you to do the right thing and stop this injustice now.

For decades, statistics have consistently shown that the death penalty is imposed on racial minorities and extremely poor people, when it is not imposed on others who commit the same crimes. In the last several years, the ACLU has participated in several cases in which it asserted that death penalty was unfairly imposed on people because of their sexual orientation.

If this sounds unbelievable, consider the Burdine case. In the final moments of the prosecutor's closing statement during the trial's penalty phase, the prosecutor - representing the State of Texas - argued that Mr. Burdine's sexual orientation should be a factor in deciding whether he received life imprisonment or the death penalty. "Sending a homosexual to the penitentiary certainly isn't a very bad punishment for a homosexual, and that's what he's asking you to do," the prosecutor said. Mr. Burdine's attorney referred to his client as a "queer" and a "fairy."

In a state and a larger society where prejudice plays a major role in criminal justice in general and the death penalty in particular, lesbians and gay men -- like every despised minority -- have good reason to fear the death penalty. And - regardless of race, sexual orientation or class - all Texans and all Americans have reason for deep concern.

Further, as Mr. Burdine's case clearly illustrates, the state's criminal justice system is inadequate. Yet last year, when the State Legislature approved a bill that would modestly improve Texas' public defender system, you vetoed it. A suspension of capital punishment would give the State time to address these inadequacies, before another citizen's life hangs in the balance because of an unfair trial.